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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14184
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-00644-WS-C

THOMAS CURTIS HINES,

Plaintiff-Appellant,
versus
KIM THOMAS,
WARDEN,
CYNTHIA WHITE,
WALTER MYERS,
RICHARD HETRICK, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(March 2, 2015)
Before ROSENBAUM, JILL PRYOR, and BLACK, Circuit Judges.
PER CURIAM:

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Thomas Hines, an Alabama state prisoner proceeding pro se and in forma

pauperis, appeals the district courts sua sponte dismissal of his 42 U.S.C. 1983
civil-rights complaint as malicious under 28 U.S.C. 1915(e)(2)(B)(i). The court
found that Hines had abused the judicial process because he failed to disclose his
prior litigation history. The court also counted the dismissal as a strike against
Hines under 28 U.S.C. 1915(g). Hines argues that he did not intentionally
mislead the court about his prior litigation history, and the district court erred in
finding that his complaint was malicious or an abuse of the judicial process. After
careful review, we vacate the district courts dismissal of Hiness complaint and its
imposition of a strike, and we remand for further proceedings.
I.
On November 7, 2011, Thomas Hines, an Alabama state prisoner, filed a 39page civil-rights complaint, plus 129 pages of attached documents from prior
cases, against Alabama Department of Corrections officials and Fountain
Correctional Facility employees for violations of his First and Fourteenth
Amendments rights, pursuant to 42 U.S.C. 1983.

Hines alleged that the

defendants provided an inadequate law library in violation of his right to access the
courts. Specifically, he contended that prison officials restricted use of the prison
law library in order to prevent Hines from pursuing a meritorious claim that his

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sentence of 30 years imprisonment, imposed in 1983 after his conviction for

possession of burglary tools, was unlawful.
On the courts 1983 complaint form, which Hines signed under penalty of
perjury, Hines responded, yes, to the question Have you filed other lawsuits in
state or federal court relating to your imprisonment. He identified Hines v.
Davidson, filed in both state court and federal court, as a previous lawsuit that was
dismissed in 1986 for failure to state a claim in federal court and for failure to
appear in state court. Hines did not list any additional cases.
The magistrate judge reviewed Hiness complaint and found that it did not
contain a short and plain statement of his claims as required under Rule 8 of the
Federal Rules of Civil Procedure. The judge ordered Hines to file an amended
complaint that complied with Rule 8(a) and 1983s pleading requirements on the
courts 1983 complaint form. And, believing Hines to be attempting to challenge
his sentence in the 1983 action, the judge also ordered Hines to assert any habeas
claims in a separate action under 28 U.S.C. 2254. In a section of the order
entitled Sanctions, the magistrate judge noted that Hines had failed to mention
any other of his numerous lawsuits, particularly those dismissed under 28 U.S.C.
1915, so the magistrate judge ordered Hines to show cause why the complaint

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should not be dismissed and counted as a strike under 1915(g) for abuse of the
judicial process or for failure to comply with the courts form requirements. 1
In response to the magistrate judges sanctions order, Hines explained that
he had not intended to mislead the court or leave out information.

He

acknowledged that he did not list all his previous lawsuits but attributed the
omissions to an honest mistake, which, he asserted, he should be allowed to
correct.
Hines then filed a 37-page amended complaint, utilizing the 1983 inmate
complaint form. As to his prior litigation history, Hines listed the following four
cases relating to his imprisonment, in addition to Hines v. Davidson: (1) Hines v.
Dove, in which the jury found for the defendant in 1985 or 1986; (2) Hines v. J.O.
Davis, which he believed was dismissed for failure to prosecute in 1986; (3) an
unnamed medical lawsuit or a fourth law [sic] or others between 1985 an[d]

Section 1915(g), otherwise known as the three strikes rule, states,

In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under [ 1915
Proceedings in forma pauperis] if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the prisoner
is under imminent danger of serious physical injury.

28 U.S.C. 1915(g). The purpose of this rule, and the PLRA generally, is to curtail abusive
prisoner litigation. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). After the third
meritless suit, the prisoner must pay the full filing fee at the time he initiates suit. Id. (quotation
marks omitted).
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1988; and (4) Hines v. Commr, Dept of Corr. (which is the case of Hines v.
Hawsey, discussed below), which he believed was dismissed for failure to
prosecute in 2002 or 2003. Of the five, he stated that only Hines v. Davidson was
dismissed for failure to state a claim. Hines explained that these cases were the
only ones he could remember filing, and that, if there were other cases, he did not
know what they involved or against whom they were filed.
In a report and recommendation, the magistrate judge recommended that
Hiness complaint be dismissed without prejudice as malicious under
1915(e)(2)(B)(i).

Although Hines listed additional cases in his amended

complaint, the magistrate judge found that the information was vague and
unhelpful in determining whether Hines was within the scope of the three-strikes
rule in 1915(g).

Furthermore, the judge stated, Hines listed only Hines v.

Davidson as an action that was dismissed for failure to state a claim, but his appeal
in Hines v. J.O. Davis was found to be frivolous, and Hines did not inform the
court that he had filed a contemporaneous habeas action, Hines v. White, at the
same time as the instant 1983 action.
Despite Hiness assertion that he did not intend to mislead the court, the
magistrate judge determined that Hiness omission of a substantial portion of the
requested information was clearly intentional and caused the district court
additional work in its review of his complaint. The court reached this conclusion
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because it reasoned that Hines had information about some of his prior cases,
owing to the fact that he referred to these cases and holdings in his complaint and
he was served in 2003 with a report and recommendation in Hines v. Hawsey, No.
02-0574 (S.D. Ala. Sept. 29, 2004), which thoroughly reviewed his litigation
history. Thus, the judge found, Hines chose not to provide the information and
then knowingly signed the complaint and amended complaint under penalty of
perjury.
According to the report and recommendation in Hines v. Hawsey 2, Hines
had litigated the following cases:
Hines v. Castle, No. 83-1366 (S.D. Ala. Dec. 7, 1983)
(treated as habeas action);
Hines v. J.O. Davis, No. 84-0932 (S.D. Ala. 1984)
(appeal found to be frivolous in 1983 action);
Hines v. Dove, No. 84-0808 (S.D. Ala. Oct. 30, 1984)
(dismissed so Hines could re-file in state court);
Hines v. Davis, No. 84-1395 (S.D. Ala. Dec. 7, 1984)
(habeas action);
Hines v. Dove, No. 84-1338 (S.D. Ala. Dec. 14, 1984)
(treated as habeas action)
Hines v. Dove, No. 86-0405 (S.D. Ala. Jan. 22, 1987)
(jury decision in favor of defendants in 1983
action)
Hines v. Davidson, No. 87-0555 (S.D. Ala. Sept. 29,
1987) ( 1983 action dismissed as frivolous)
2

The report in Hawsey recommended that Hiness 1983 complaint be dismissed under
the three-strikes provision of 1915(g), and the district court adopted the recommendation. On
appeal, this Court vacated and remanded the case, concluding that of the four cases relied on by
the district court, two (Castle, No. 83-1366, and Dove, No. 84-1338) were habeas cases that did
not count as strikes. See Hines v. Hawsey, No. 02-0574 (S.D. Ala. Sept. 29, 2004), doc. 26. On
remand, the district court granted summary judgment in favor of the defendants.
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Hines v. Johnson, No. 86-0357 (S.D. Ala. Dec. 5, 1988)

(habeas action)
Hines v. Davis, No. 86-0234 (S.D. Ala. June 1, 1989)
( 1983 action dismissed for defendants)
Hines v. Davis, No. 85-0827 (S.D. Ala. June 7, 1989)
( 1983 action dismissed, for defendants, after an
evidentiary hearing)
Hines v. Davis, No. 86-0999 (S.D. Ala. Oct. 24, 1989)
( 1983 action dismissed for failure to prosecute)
The magistrate judge concluded that, based on Hiness non-responsiveness
to the courts orders, including his failure to file a short and plain statement, as
well as his responses to the complaint forms questions, the tenor of his objection,
and his persistence in filing challenges to his criminal sentence, Hiness conduct
during the litigation indicated that obtaining a favorable ruling on his claims is
just one of his purposes. According to the judge, Hiness conduct in this action
is conduct that courts have deemed abusive, and for which, courts have imposed
the double sanction dismissing the action without prejudice and counting the
dismissal as a strike on the ground of being malicious.
Hines filed objections to the report and recommendation, arguing that he
omitted his prior habeas cases because the district courts 1983 complaint form
did not ask for them. Rather, he understood the form to ask only for prior lawsuits
relating to his conditions of confinement. Of the twelve prior cases identified by
the magistrate judge, Hines asserted that some were habeas cases and should be
excluded from the list; that the Hines v. Dove cases, listed three times by the
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magistrate judge, were the same case but handled in different ways; and that he did
not have the means to remember and list cases from decades ago. Hines explained
that a dismissal without prejudice would prevent him from re-filing in the future
because the statute of limitations on his claim had passed.
On August 12, 2013, the district court overruled Hiness objections and
adopted the report and recommendation of the magistrate judge.

The court

dismissed the complaint without prejudice under 1915(e)(2)(B)(i) and counted

the dismissal as a strike against Hines pursuant to 1915(g).
II.
Under the Prison Litigation Reform Act (PLRA), a district court shall
dismiss at any time an in forma pauperis case if it determines that the action
(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. 1915(e)(2)(B)(i)-(iii). We review for abuse of discretion
a district courts sua sponte dismissal under 1915(e)(2)(B)(i). Hughes v. Lott,
350 F.3d 1157, 1160 (11th Cir. 2003). Discretion means the district court has a
range of choice, and that its decision will not be disturbed as long as it stays within
that range and is not influenced by any mistake of law. Zocaras v. Castro, 465
F.3d 479, 483 (11th Cir. 2006) (quotation marks omitted). A finding that the
plaintiff engaged in bad faith litigiousness or manipulative tactics warrants
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dismissal under 1915(e)(2)(B)(i). Attwood v. Singletary, 105 F.3d 610, 613 (11th
Cir. 1997).
A dismissal without prejudice generally does not constitute an abuse of
discretion because the affected party may simply re-file the action. See, e.g.,
Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983)
(holding that dismissal without prejudice for failure to file a court-ordered brief
was not an abuse of discretion). But where a dismissal without prejudice has the
effect of precluding the plaintiff from re-filing his claim due to the running of the
statute of limitations, it is tantamount to a dismissal with prejudice. Justice v.
United States, 6 F.3d 1474, 1482 & n.15 (11th Cir. 1993).
Dismissals with prejudice are drastic remedies that are to be used only where
lesser sanctions would not better serve the interests of justice. Id. at 1482 n.15.
Therefore, dismissals with prejudice generally are not appropriate unless the
district court finds both that there is a clear record of delay or willful misconduct
and that lesser sanctions are inadequate. Zocaras, 465 F.3d at 483 (involving
sanctions under Rule 41(b), Fed. R. Civ. P.). Mere negligence or confusion does
not rise to the level of willful misconduct. Id. We have held that cutting off a
plaintiffs potentially meritorious action is an unduly harsh sanction for failure to
prosecute or to comply with a court order, absent willful or contumacious
conduct. See Justice, 6 F.3d at 1481.
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The statute of limitations for 1983 claims is governed by the forum states
residual personal injury statute of limitations, which in Alabama is two years. See
Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (en banc); Ala.
Code 6238(l). Hiness action, which was filed in November of 2011, was
based primarily on events which allegedly took place before August 2011, at the
latest. Therefore, it appears that the district courts dismissal on August 12, 2013,
was tantamount to a dismissal with prejudice, as Hines had argued in his objections
to the magistrate judges report. See Justice, 6 F.3d at 1482 n.15.
After a review of the record in this case, we conclude that the district court
abused its discretion in dismissing Hiness case as malicious. See Hughes, 350
F.3d at 1160. The magistrate judges thorough report and recommendation, which
was adopted without change by the district court, correctly found that Hines, under
penalty of perjury, failed to disclose in his original complaint at least one federal
action, Hines v. J.O. Davis, that was dismissed as frivolous on appeal. Hines had
notice that this case counted as a strike under 1915(g). See Hines v. Hawsey, No.
02-0574 (S.D. Ala. Sept. 29, 2004), doc. 26. In his amended complaint, Hines
listed additional cases, and he acknowledged that he was only listing cases he

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could remember, making it clear that there might be additional cases. But Hines
again did not list all of his prior 1983 cases in his amended complaint. 3
However, there does not appear to be a clear record of willful misconduct
on Hiness part. See Zocaras, 465 F.3d at 483. Hiness allegation that he does not
remember all his prior cases is plausible, given the age of most of the cases. In
addition, several of the missing cases were habeas actions, and Hiness argument
that the district courts 1983 form did not ask him to list his past habeas cases is
not unreasonable. See, e.g., Anderson v. Singletary, 111 F.3d 801, 805 (11th Cir.
1997) (holding that the PLRA does not apply to habeas corpus proceedings).
Additionally, the limited information available on his past cases shows only two
cases dismissed under 1915, and Hines disclosed those cases in his amended
complaint. Thus, it is not apparent that Hiness failure to list his prior cases was an
attempt to avoid a 1915(g) three-strikes dismissal. Indeed, one of the cases
Hines included in his amended complaint was Hines v. Hawsey, which the
magistrate judge relied upon for its review of his litigation history.
Furthermore, although the magistrate judge faulted Hines for not including a
short and plain statement of his claims in the amended complaint, Hines
condensed his access-to-courts claim and filed a shorter total complaint,
notwithstanding his addition of an additional claim for relief.
3

And despite

We base this conclusion on the report and recommendation prepared in Hines v.

Hawsey. Due to the age of the cases, we have been unable to verify the details independently.
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accepting that Hines was not attempting to challenge his conviction and sentence
in the context of this 1983 action, the magistrate judge, nonetheless, cited
Hiness persistence in filing challenges to his criminal sentence as a reason
supporting dismissal of the action.4 While it is apparent that Hines was certainly
negligent in failing to inform the court of his litigation history, his actions as a
whole do not present a clear record of willful misconduct. See Zocaras, 465 F.3d
at 483.
Had the dismissal truly been without prejudice to re-filing, the district court
likely would not have abused its discretion in dismissing the action. See Dynes,
720 F.2d at 1499. As explained above, however, the dismissal without prejudice in
this action appears to have been tantamount to a dismissal with prejudice due to the
running of the statute of limitations. Whats more, the courts imposition of a
strike under 1915(g) appears to be Hiness third, implicating the three-strikes bar.
See 28 U.S.C. 1915(g).

The record does not show that the district court

understood that the dismissal would preclude Hines from refiling due to the statute
of limitations, nor did the court explain why a lesser sanction would be inadequate.
See Zocaras, 465 F.3d at 483; Justice, 6 F.3d at 1481-82 & n.15. Given that Hines

Hines indicated that his discussion of the merits of his habeas claim in the complaint
and amended complaint wasat least in part to show that he suffered an actual injury for
his access-to-courts claim, as required by Lewis v. Casey, 518 U.S. 343, 351-53, 116 S. Ct. 2174,
2180-81 (1996).
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disclosed several prior suits, his failure to disclose the other cases does not, on this
record, support a dismissal with prejudice. See Zocaras, 465 F.3d at 483.
Accordingly,

we

vacate

the

dismissal

of

Hiness

action

under

1915(e)(2)(B)(i) and the imposition of a strike under 1915(g), and we remand

for the district court to consider and address whether an effective dismissal with
prejudice is warranted, and, if so, why a lesser sanction would not suffice. We
express no view on the appropriate resolution on remand.
VACATED AND REMANDED.

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